Oregon Appellate Ct - Nov 25, 2015

by: Abassos • November 25, 2015 • no comments

Stalking - A Petition for a Stalking Protective Order Is Not Evidence At the Hearing On Whether to Grant the Petition

The evidence was insufficient to warrant the issuance of a Stalking Protective Order (SPO) where the only evidence at the hearing was that defendant repeatedly walked back and forth in front of petitioner's restaurant wearing a rat costume. More specifically, while the trial court found the behavior "bizarre and alarming", there was no evidence that the petitioner was actually and reasonably afraid for either her own personal safety or that of her family or household. It seems that the trial court believed that statements made in the petition were part of the record. However, the factual allegations in the petition are not included in the evidentiary record unless they are admitted by the respondent. Thus, reversal is required. Because the evidence did not meet the statutory standard for issuing a stalking protective order, the court does not address respondent's additional argument that his actions were protected speech that required a heightened standard for issuing a SPO. RMC v Zekan, 275 Or App 38 (2015).